Recent events spur debate over electing vs. appointing judges

LITTLE ROCK — Recent events in Arkansas have sparked new debate over an old question: Is choosing judges through elections the best way to ensure a fair and independent judiciary?

Attorney General Dustin McDaniel said last week he has decided the answer is “no.”

McDaniel addressed the issue while commenting on a motion filed in a lawsuit challenging Arkansas’ ban on same-sex marriage. The plaintiffs in the suit filed a motion Monday arguing that any justices on the state Supreme Court who plan to seek re-election should recuse from hearing an appeal by the state of a circuit judge’s ruling that the ban is unconstitutional.

The plaintiffs argued that the justices could not overturn the ruling without appearing to have been improperly influenced by outside forces, namely, state legislators who adopted a resolution condemning the ruling and publicly spoke of seeking the ability to recall judges in response to the ruling.

McDaniel said judges commonly hear controversial cases and called the motion “a nonstarter.” But he also said he has come to believe it is “a mistake” to elect judges to Arkansas’ appellate courts.

“I think that political fundraising, political consultants, outside campaign money are all things that should have no place in the courtroom,” he said. “I think that parties should believe that justice is the only thing on the mind of a jurist.”

Arkansas is one of 22 states that choose Supreme Court judges through competitive elections. Twenty-three states and the District of Columbia use bipartisan nominating panels to make merit-based judicial appointments and require the judges to face periodic retention elections. In the remaining five states, the governor or legislature appoint judges without the involvement of a nominating panel.

“I still believe that the voters should have a say, and so I think retention elections are a good thing and are less prone to be political than other kinds of elections,” McDaniel said, although he acknowledged that outside money has “poured in” to retention elections in some states.

“We saw an outside group come into this last election for an open seat for the Arkansas Supreme Court, and I think it’s a harbinger of things to come,” he said.

McDaniel was referring to a race this year in which state Court of Appeals Judge Robin Wynne defeated Little Rock lawyer Tim Cullen for an open Supreme Court seat. An outside group, the Law Enforcement Alliance of America, spent more than $300,000 on ads attacking Cullen.

Although Cullen said he agrees with McDaniel that the outside spending in the race was troubling, he does not believe replacing judicial elections with an appointment process would necessarily take politics out of the equation.

“I worry that it would just transfer those politics to the governor’s office, or to whatever commission winds up appointing judges,” he said.

Cullen said outside groups spent heavily on efforts to influence a retention election Thursday for three Supreme Court justices in Tennessee, one of the states that use a nominating panel to choose judges.

“There is the same kind of concern (in Tennessee) that that’s injecting politics into judicial races,” he said.

Cullen said the key issue for him is transparency in judicial races. As a so-called “social welfare group,” the Law Enforcement Alliance of America was not required to identify the sources of the money it spent to target Cullen.

Arkansas voters elect Supreme Court and Court of Appeals justices to eight-year terms in nonpartisan elections. There is a process for impeaching judges for misconduct, and the state Judicial Discipline and Disability Commission has authority to investigate allegations of judicial misconduct and recommend sanctions that the state Supreme Court may impose, including removal from the bench.

In 1980, a ballot question asked Arkansas voters to choose between electing Supreme Court and Court of Appeals justices through elections or through a merit-based selection process. Voters chose elections by a margin of 56 percent to 44 percent, according to the secretary of state’s office.

In 2000, voters approved Amendment 80 to the Arkansas Constitution, which made judicial elections nonpartisan. An attempt to add merit selection of judges to the amendment failed.

“Basically the feeling was, ‘Oh, we’ve already been through this,’” said Annabelle Imber Tuck, who served on the Arkansas Supreme Court from 1997 until her retirement in 2010.

Tuck served on a state task force that in 2012 released a set of recommendations for reforming judicial elections. Those recommendations included creating a website where voters could find information on judicial candidates and creating a team to fact-check ads and call for the removal of false ads.

But Tuck said she is not convinced that appointing judges would be preferable to electing them.

“Politics is going to be a part of the process, whether it’s appointment or election,” she said. “If it’s an appointment process, then you’re going to have to get into the business of, ‘Who helps who?’”

Tuck said that if the public wants to vote on the issue again, that would be “a great idea.”

“But I’m very practical. I don’t think the people of the state of Arkansas are going to give up their right to vote,” she said.